Abstract
Books, even nonfiction, can be thought of as pictorial art. Textbooks and professional treatises, metaphorically, have all the charm, but also the utility, of technical drawings. Narrowly focused nonfiction can be analogized to still life paintings or closed interiors, aspiring perhaps to the artistic and psychological insights of a Vermeer. Other books may expand on subjects offering variations in color and mood like a landscape or architectural genre painting.
In this vein, Jeffrey Kirchmeier’s Imprisoned by the Past can be imagined as a grand monumental painting, tapestry, or mural—of colossal size—fit for a museum. Monumental art often has a central figure or theme to which the eye is initially drawn. But the huge canvass is also crowded with an amazing variety of figures and action that enlarge the central theme. Like Guernica, Picasso’s antiwar masterpiece, Imprisoned by the Past, has a definite point of view. But unlike the painting’s immediate visceral horror, Kirchmeier’s opposition to the death penalty is muted through this multilayered analysis of capital punishment.
The book’s centerpiece is McCleskey v. Kemp, a 1987 Supreme Court case upholding the death penalty, despite statistical evidence showing that death was the far more likely sentence for killing a White person than an African American. The absence of a discriminatory purpose immunized actual discrimination. As befits a law professor and activist who defended capital cases, Kirchmeier explains the often daunting procedural and substantive legal issues with clarity. The book, however, is not a technical legal treatise. It paints a panoramic canvass in which the case leads to many probing inquiries.
The title—and main theme—is taken from Justice William Brennan’s dissenting opinion in McCleskey v. Kemp: “[W]e ignore [Warren McCleskey] at our peril, for we remain imprisoned by the past as long as we deny [racism’s] influence on the present.” Much of the book elucidates the roots of capital punishment in America’s tradition of slavery, lynching, and Jim Crow justice. The Supreme Court’s hope in the success of its guided discretion regime, critical to its reinstatement of capital punishment in 1976, foundered on the continuing impact of race. While the majority ignored this reality, a growing number of judges (on and off the Supreme Court), and a growing segment of society, have come to embrace Justice Brennan’s warning as the popularity of capital punishment declines.
But like Rembrandt’s Night Watch, a masterwork that transformed a static portrait genre into a dynamic composition with layered political symbols, Imprisoned by the Past relays complementary accounts of social transformation through law and politics. One account is how McCleskey v. Kemp became a test case in the Legal Defense Fund’s strategy to abolish capital punishment through Supreme Court decisions. The failed attempt, explained on several levels (legal analysis, changing public opinion, and a changed Supreme Court), at first stymied the abolitionist community. The movement then took two major lessons from this loss. On the legal front, capital defense lawyers shifted to challenging death penalty procedures and incidents, seeking to expand the role of mitigating factors and limit the acceptability of execution methods. The other major lesson of the failed judicial strategy was a return to political action, beginning with a moratorium movement, which has, in the 21st century, successfully pushed back the scope of capital punishment. Recent legislative action is reviewed for states that have repealed the death penalty and others where abolition is in the air. These reforms have been attended by the changing attitudes of legislators who are no longer incentivized to support capital punishment for political gain.
Imprisoned by the Past illuminates its themes with many related stories, sometimes captioned in separate chapter (“lynching and race in America”; “other American execution methods”) and at other times integrated into discussions of the main themes. Kirchmeier’s approach calls to mind the pictorial devices of Diego Rivera’s magnificent Detroit Industry Murals in the Detroit Institute of the Arts, with its many panels of topics surrounding the assembly line, ranging from nature’s bounty, to women working in the pharmaceutical laboratory, to Edsel Ford.
Kirchmeier includes a fascinating array of subsidiary stories, making his book continuously interesting on a human scale, as well as instructive. The crime and all the people directly affected are described: Warren McCleskey, his family, codefendants, Officer Frank Schlatt who was killed responding to the 1978 robbery, and the attorneys and judges involved in the trial and the many appeals that followed. Attention is paid to the state of Georgia and McCleskey’s hometown of Marietta and their history of lynching and racialized justice, which framed the larger narrative. The American history of capital punishment and its abolition is illuminated with asides like the effects of executions on prison officials and, more substantially, the role of actual innocence in abolition. The book covers a good deal of the current capital punishment jurisprudence, including cases declaring the execution of the developmentally disabled and juveniles unconstitutional and that have reversed death sentences on ineffective assistance of counsel grounds.
Readers will learn a good deal about the complexity of the judicial process. For example, McCleskey had a solid issue based on the state’s jailhouse snitch who almost surely was incentivized to lie. The issue saved McCleskey’s life when a federal habeas judge found this to be a right to counsel violation, only to be overturned on narrow procedural grounds by appellate courts and ultimately leading the Supreme Court to make it more difficult for habeas petitioners to bring successive appeals.
Imprisoned by the Past, written in clear and direct prose, will be instructive to most readers. Although the subjects of its large canvass have been the focus of prior scholarship, Jeffrey Kirchmeier has produced a masterful tableau bringing together the pieces of a large and important story that needs to be told.